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June 26, 2013

U.S. Supreme Court Defines “Supervisor”

Filed under: Legal Issues8:33 am

Earlier this week the United States Supreme Court ruled on Vance v. Ball State University giving a clear definition of the term, “supervisor.”  This important ruling used the precedents set in two separate 1998 landmark cases, Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton.  In these cases, the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors.  The standard of liability set forth in these decisions is premised on two principles:  1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

In Vance v. Ball State University (BSU), Maetta Vance, an African-American woman, sued her employer, BSU, alleging that a fellow employee, Saundra Davis, a white woman, created a racially hostile work environment in violation of Title VII.  In spite of the efforts of BSU to immediately investigate and resolve the complaints received from Vance during her employment, Vance continued to be subject to discrimination and retaliation.  She filed suit, claiming that Davis was her supervisor and that BSU was vicariously liable for Davis’ actions.  BSU denied that Davis was Vance’s supervisor, thus the definition of a supervisor came into question and made its way to the Supreme Court.  The Supreme Court ruled that a supervisor has the authority to make a “tangible employment action” which means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser.  If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.  If the harasser is a “supervisor,” different rules apply.  The employer is strictly liable if the supervisor’s harassment culminates in a tangible employment action.

With this new definition in mind, employers should:

  • Carefully analyze and document who in their organization will have the authority as a supervisor;
  • Train all supervisors of their responsibility in representing the company and educate them as to what it means to be a supervisor;
  • Educate all employees of their responsibility and the process to report any incidents of harassment, discrimination, or retaliation promptly; and
  • Investigate immediately with the goal of resolution.

If your employment policies need revised, now is the time to act!  Contact us!


June 21, 2013

HR Fact Friday: Lactation Bias = Sex Discrimination

Filed under: General HR Buzz — Tags: , , , 6:00 am

A federal appeals court in Texas has ruled that firing a woman because she is lactating/expressing milk is unlawful sex discrimination under federal law, including the Pregnancy Discrimination Act of 1978 (PDA). The PDA protects working women against discrimination on the basis of pregnancy, childbirth or a related medical condition. This particular case involved a plaintiff who claimed that she was fired after giving birth once she inquired as to whether she would be able to pump breast milk when she returned to her job. The appeals court noted the biological fact that lactation is a condition distinct to women who have undergone a pregnancy. Accordingly, under federal law, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, because men as a matter of biology could not be fired for such a reason.


June 19, 2013

Are You Ready for an I-9 Audit?

Filed under: Legal Issues — Tags: , 10:21 am

The U.S. Immigration and Customs Enforcement (ICE) has been very busy!  Form I-9 audits are on the rise.  ICE enforces the law governing the Form I-9 and engages in effective worksite enforcement.  Notice some of the worksite enforcement investigation statistics from 2012:

  • Homeland Security Investigations (HSI) made 520 criminal arrests tied to worksite enforcement investigations.
  • Of the individuals criminally arrested, 240 were owners, managers, supervisors, or human resources employees.  They face charges such as harboring or knowingly hiring illegal aliens.  The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud.
  • HSI served 3,004 Notices of Inspection and 495 Final Orders, totaling $12,475,575 in administrative fines.

As this illustrates, the government takes immigration issues very seriously.  What can an employer do to protect themselves and the company?  Regularly performing self-audits is a good way to ensure compliance.  Here are a few suggestions to include in your self-audit:

  • Make sure you are using the current form dated 3/8/13.
  • Verify that Section 1 is completed properly and by the employee.  Section 1 must be completed after an offer is accepted, but no later than the first day of employment.  Email address and telephone number are optional.  SSN is optional unless you participate in E-Verify.
  • Complete Section 2 within three days of the new hire’s first day of employment.  Verify that all documents have been entered in their prescribed places accurately.
  • Verify that the documents presented reasonably appear to be genuine.  Documents presented for proof of identity and work authorization must be selected by the employee.  An employer may not require certain documents to be used, nor may they ask for more documents than required.  This can be considered discriminatory and is document abuse.
  • Check Section 3 to ensure that any re-verifications of work authorization have been completed along with any legal name changes.
  • Remove I-9s from personnel files.  Retain current and terminated employee Forms I-9 separately.  Retention rules state that I-9s must be retained either one year after termination or three years after hire, whichever is later.  Shred documents as soon as the appropriate date has arrived.

While this is not an exhaustive checklist for your self-audit, it is a good starting point.  Make sure you are familiar with the Handbook for Employers and that all employer representatives completing I-9s are properly trained.

Click to see how our HR Consultants can help you!


June 14, 2013

HR Fact Friday: See you in Chicago at SHRM – Booth 2019

Filed under: HRN News — Tags: , 6:00 am

HRN Performance Solutions will be exhibiting at the upcoming SHRM Annual Conference & Exposition taking place at the McCormick Place Convention Center in Chicago, IL June 16-18. Stop by booth #2019 and visit with HRN representatives and view demos of our Compease and Performance Pro solutions. I will be there along with Gene Mandarino, Sr. HR Consultant, and look forward to reconnecting with our many clients that will be in attendance and also making new connections and contacts.

See you in Chicago! Travel safe.

Paul Hendrycks
V.P. Sales and Marketing
HRN Performance Solutions


June 12, 2013

Are You Distracted?

Filed under: General HR Buzz6:00 am

Office workplaces are usually abuzz with activity!  Mostly, we like to think it is productive work, but obstacles sometimes present themselves that slow our momentum and turn into downright distractions!  Then you have those dynamic and unique interpersonal relationships starting as mere acquaintances sharing a common thread (work), but in time, if you are fortunate, you may make new friends.  Studies have shown that your workmates can definitely affect your level of success in the office. recently commissioned Harris Interactive to conduct a study on Office Workplace Productivity.  The study revealed some interesting findings.  61 percent of distractions at work come from noisy colleagues.  With the more prevalent cubicles and openness of office space, 27 percent (in spite of their noisy coworkers) prefer the open room setting.   Curiously, 46 percent reported that while they were physically located close to their colleagues, they communicate electronically with them as opposed to face-to-face conversations.

Another big distraction comes from those friendly, well-meaning coworkers (40 percent) who decide to call an impromptu meeting by stopping at your work station at their convenience.  Speaking of meetings, 24 percent feel they have “meeting fatigue,” from spending more time in meetings talking about work than doing it.  While we all understand the importance of interaction and collaboration with our coworkers, 86 percent of the respondents stated that in order to reach maximum productivity they prefer working alone.

Everyone agrees that uninterrupted focus time is essential for peak productivity.  Our brains operate better when we focus on one thing for a few minutes at a time that allows us to actually think.  Minimizing distractions is difficult, and they won’t ever be completely abolished, but each employee can do their part.  Will you think twice before you open that bag of chips in your cube or when you walk by a coworker’s desk and can’t resist the urge to interrupt them?

What distractions affect your workplace?  We’d like to hear your comments!

Source:  PRNewswire, “New Study Reveals Distractions in Workplace,” May 7, 2013.


June 7, 2013

HR Fact Friday: Wage and Hour Claims Continue to Proliferate

Filed under: Salaries & Pay — Tags: , , 6:00 am

As performance and compensation specialists HRN Performance Solutions works with nearly 1000 clients annually to ensure they are paying their workforce according to current market rates for location, industry, employee position, responsibility and performance level. I know from firsthand experience how important it is to a company to manage workforce compensation cost, both from a fiduciary/competitive responsibility but also from a workforce retention standpoint. Companies don’t want to lose top performers. Why then do we continue to see that companies will invest in paying HR consultants to provide and analyze salary survey data and advise them on compensation matters but will be completely in the dark when it comes to basic payroll matters such as overtime or exempt vs. non-exempt classification.

For example, Corporate Counsel magazine recently reported that the number of wage and hour lawsuits filed against employers in federal court have increased for the fifth straight year. Claims are up 10% over a twelve month period measuring part of 2012 and three months of 2013. Typically, these are claims brought under the Fair Labor Standards Act (FLSA) involving misclassified employees seeking overtime pay, hourly workers claiming they were not paid for all hours worked, or restaurant workers claiming they were not properly paid under tip credit rules. Wage and hour claims can also result from state law issues. For example, a national coffee company recently had to pay $3 million for allegedly not providing California employees with required meal breaks and for issuing inaccurate wage statements.

I don’t mean to suggest that the ‘rules’ for payroll matters are easy to understand and apply. They vary by state and in some instances the language is difficult to understand and can be open to interpretation. However when headlines such as those made by the national coffee chain noted above become commonplace, as they are today, doesn’t it make sense to review all wage and hour pay policies for overtime, breaks, tips, position classification, etc. with an experienced legal advisor to avoid very expensive and negative litigious legal proceedings. Employees are much better informed today and jury’s are historically sympathetic to the worker vs. employer during periods of economic challenge and high unemployment. As the saying goes . . . an ounce of prevention . . .


June 6, 2013

The Business Driven Goal

Filed under: Performance Pro11:46 am

Recently, I was working with a client whose managers were struggling to create and administer their employees’ goals. With over 2,000 employees, the HR team was finding it a challenge to analyze their data and pinpoint what the major issues were.  We pulled a sampling of objectives and pretty quickly a pattern began to emerge.  Over and over we saw short, vague goals that had little (or nothing) to do with their company.  “Drink more water” and “Read four books this year” were some of my favorites.  Of the goals that were business related, very few of them were business driven – i.e., goals that supported the overall health, direction, and strategy of the organization.

Business driven goals essentially connect top organizational strategies directly to their employees’ performance and pay.
Doing so creates a powerful line-of-sight understanding for staff, fosters a greater understanding of company direction and priorities, and provides senior management with feedback on their businesses progress.   Nobody would argue that these things are important for organizational success. However, most companies have no tools in place to do just that.

Ultimately we found that employees and managers want to be working towards the right thing, but they often don’t know what the right thing is!  The good news—teaching your managers how to work with business driven goals can solve this problem.  Here are some steps HR can take to get their managers and employees to start working more strategically:

  1. Provide an effective tool that broadly communicates company objectives.  Best practice would be to disseminate these in your performance appraisal system but it could be a form that lists and explains all strategies.
  2. Tie employee goals to those objectives.  Throw out non-business driven goals and link all employee goals to a company strategy.
  3. Talk to each employee about how their individual goals move the company towards success.  This fosters employee trust and understanding on how their performance impacts the organization.
  4. Provide reporting and metrics on success of the company objectives based on the performance of employees.  Providing this information to management will help them determine what is working and what needs more attention which will…
  5. Ultimately improve overall organizational performance!

June 5, 2013

How Do You Measure Productivity?

Filed under: Performance Management — Tags: 6:00 am

Productivity is one of the most important aspects to the life of any organization.  Without productive employees an organization will eventually cease to be.  How do you know if your employees are productive?  How is their productivity measured?

In the manufacturing industry, productivity is directly linked to the number of parts produced in a predetermined amount of time.  Anything above or below the number of parts or the amount of time is the measurement for the employee’s performance.  Pretty simple theory, but since we are not all manufacturers of thingamajigs or widgets, we have to be a little more creative.

For service and knowledge jobs, the metrics are more subjective.  There is not a golden number of customers served in a day that makes a customer service representative a great ambassador for the organization, nor, does the number of lines of code make one a great software developer.  This illustrates that it is not always quantity that tells the story of productivity, but quality is a vital part of measuring service and knowledge jobs.

When serving customers, we want employees to give the customer not only quick and efficient service, but we want to create a superb experience that communicates to them who we are and allows us to build further on our relationship with them.  A software developer may be able to write a shorter code that yields a program far superior to the program using longer code.

Effectiveness, reliability, and impact of the employee’s work, may be additional factors an employer wishes to measure for these types of jobs.  To begin to do this and do it well, executives must define their strategy, develop action plans, and communicate to all employees the desired outcomes.   Since many jobs are unique to certain industries, make sure you dwell on your vision carefully, then skillfully target the metrics you wish to capture so you can see productivity at work.

Source:  Knowledge@Wharton, “Productivity in the Modern Office:  A Matter of Impact”